20 January 2009

Debating India's anti-terror law

I spoke over the weekend at a roundtable organised by the Public Interest Legal Support and Research Centre (PILSARC) in Delhi on anti-terrorism legislation in India. The panel was pretty huge and we had barely an hour between us, not to speak of giving time for comments from the audience. The discussion was pretty stormy. Speaking first against the government's recent amendments to the Unlawful Activities (Prevention) Act was Supreme Court advocate Prashant Bhushan. He about the scope for abuse of the new law and noted how most people prosecuted by anti-terror laws were actually innocent. He was followed by Joginder Singh, the former head of the Central Bureau of Investigation. Singh attacked human rights organisations for being more concerned about the rights of terrorists than ordinary people and strongly defended the government's move.

I followed Singh by criticising the false dichotomy between concern for human rights and the need to fight terrorism. I suggested that the Indian police is ill-equipped to deal with terror not because of lack of law but because of its lack of equipment and intelligence, its non-scientific approach and over-reliance on "easy" methods of producing "results", namely torture and third-degree, which effectively traps innocent or marginal players while allowing the real bad guys to get away ...

Former Punjab police chief K.P.S. Gill followed me and launched another attack on NGOs and human rights folks. But he ended up saying he didn't see what good the new law would bring. Retired bureaucrat Bhure Lal then made a largely incoherent presentation in favour of tough laws and also said some odd things about India's majority and minority being "from a particular community". A (self-identified) Hindu member of the audience later took that reference for an attack on Muslims, which he denounced.

There was a heated and animated discussion with robust interventions from Rajeev Dhavan,KPS Gill and members of the audience. P.C. Sharma, another former CBI director and now member of the National Human Rights Commission, refreshingly endorsed the view that the police needs to get more professional and that equipping it with new laws may not be the best answer to the menace of terrorism.

All in all, it was good of PILSARC to get all of us in the same room. Most of the time, the two sides of the debate never get to engage with each other in this manner.

12 comments:

In an interview with Prabhu Chawla, Modi argued for tough anti-terror laws with his usual tough and "commonsensical" rhetoric. His own contradictions caught up with him when he blustered that his state had a track record of no terrorist activity in recent years. To which Chawla retorted, "If you have been able to stave off terrorism under the existing legal framework, then why do you need new laws". It was a pity Chawla let him off the hook. Dawn's Wahajat Khan did a much better job of unravelling L K Advani's hypocrisy by persisting with his grilling of Advani's moral equalising Gujarat 2002 with Delhi 1984.

But then, Modi and Advani are not bothered about liberal reception of their ideas.

What are your views on the protests concerning the Batla House encounter last year?

Is there not a responsibility for Human Rights activists to admit things when they turn out to be wrong?

Should civil society groups have impunity from raking muck and tarnishing good police officers' names?

Joginder Singh may be wrong in his pronouncements but you cannot but admit that there is a tendency within some Indian civil society groups to use protests to cow down any mention of Muslim groups' involvement in terror acts.

This dichotomy has always been a problem with the war on terror and is not endemic to the Indian system. For instance Georgetown university students are suing the US agencies for the unsolved mystery surrounding the murder of WSJ journalist Daniel Pearl way back in 2002. US claims that one of 9/11 plotters killed Pearl whereas Pak claims it is the infamous Saeed (who has already been given death sentence but strangely not been executed for the past 6 yrs) Instead Saeed is being blamed for assassination attempts on Musharaff and organizing the recent Mariott hotel bombings through the terrorist organization Lashkar Jahngvi.

If two men (let us call them X and Y) sit at their home, plan an attack, where X goes and shoots a number of people in a train station. No amount of smart policing or intelligence can prevent this! Now if X is caught, the *only* way of knowing about Y's involvement is by questioning -- that is why we need a law where confession before police is legally valid. If X is smart, he will *never* confess in front of a judge. He will only deny charges in the court. But using smart methods police can extract more information from X than what he would say in court.

Now any law can be misused. That does not mean we should not have the laws!

Don't be so naive. It is not easy to just go and shoot folks in a train. You need "guns" for the same. And invariably if they are automatic weapons, one can trace them. If many guns are being sold, through thorough intelligence, the agencies can sound an alert. It is more easier if its explosive material such as RDX.

Terror attacks within the country will not come about by two people sitting in a room and then going ahead and killing someone. It comes through by decentralised planning, guidance and help by existing radical outfits and finance too. Financing weapon buying, or explosives' buying can also be tracked or traced if one had a sufficiently good information/ intelligence network. That is what the IB and other folks are supposed to do, using your and my tax money.

The so called post-facto laws, which legitimise torture, confessions etc, as Siddharth points out are so misused that they actually give a reason for those disaffected with the "system" and breeds grounds for more radicals - including terrorists. As Siddharth points out, the choice is indeed between a smart state and a foolish one.

Mr. X (in my example) can use 100 different ways (with no involvement of Y) to get a gun. Still there is no way of *proving* the conspiracy that was hatched between X and Y. Do you have a way of proving it ?

There are many crime examples (all over the world) where, even theoretically, there is no way of knowing the truth without confession!

What I said is a simple example. This can appear in many complex ways where things get more murkier.

If it can be proved that the gun was indeed procured by your X, or indeed a trail can be made to X of the gun even if it goes through 100 intermediaries, then it is easy to pin the blame on X without having to torture his/her living daylights out. It is as simple as that. Besides, if someone is tortured, it is not that simple that he/she will be telling the truth ; the rather the "truth" would be what he/she is being told to tell (or otherwise bear out the torture). It is as simple as that.

Perhaps a civilized society can not accept the draconian laws. But when you see the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 which has helped a lot in tackling Terrorism in US we can see the Indian law is actually too much soft on terrorism. When you compare the number of people detained wrongly and number of people killed in terrorist activities in India you can understand the difference.Its not the laws but its the machinery that must be tackled. Penalize the wrong use of law but it is DEFINITELY NEEDED.

Journalists like you if you die in a bomb blast can say you died doing your job. But what about us? Common man in India. We are just cowards who does not want to die because we have numerous obligations to meet. You can voice for the human rights but who will protect our basic right - the right to live? No one. Why the hell you can not voice for that ? Can you hunt down the terrorist camps in pakistan as a journalist and bring the "evidence" which they require? "NO" - I know that. Because you are afraid.

Raise your voice against the machinery which misuses the law. Think and draw in some kind of transparency in conducting arrests under the new law. No one will disagree but you can not sit idle for ever to see innocent poor people getting killed every day and show kindness to perpetrators. When you see that no terrorist attack happened in US after 9/11 and something happens every day in India ...

I know you are pointing out US was never a serious target for terrorists before 9/11. Well its partly true except a bomb explosion in Atlanta and others. But i was pointing out the harder stance taken by US after 9/11 did certainly help United states to tackle terrorism in their country.

http://www.heritage.org/research/HomelandDefense/bg2085.cfm :- Just visit these links for effectiveness of US intelligence and their administrative machinery. You can count the number of people who escaped clutches of law in India which includes many SIMI leaders which later proved to be a big head ache. We need stricter laws , stricter machinery(many of our administrations are afraid of vote banks in tackling terror). Fight against the misuse of laws, not the laws !

The question here is not how to convict X (it is easy, there are witnesses), the question is how to convict Y for planning it. My question is, do you a way of proving the crime against Y for conspiracy ?

It is said that in the Rajiv Gandhi assasination case, without confession there was no way of proving the conspiracy and punishing the conspirators.